The unfortunate reality
is that we have state based laws regulating surrogacy. I say unfortunate,
because we don’t have national laws, and every state is different. I am
covering both New South Wales and Queensland in this paper (which will be
graciously delivered by Natalie Moffatt in Sydney as I will be on my way back
from overseas after having spoken at a surrogacy conference overseas). In part
this is because the NSW Act largely copied the provisions of the Qld Act. In
part, because there are many NSW/Qld surrogacy arrangements where one side
lives in NSW and the other in Qld.In
part, Qld IVF clinics have frequently provided surrogacy services to NSW
patients.

1.Going Overseas

I don’t intend to focus too
much on that in this paper. However, no discussion of the Australian legal
landscape regarding surrogacy can be touched without a discussion of going
overseas, particularly when some research is that the number of people going
overseas to the number of people undertaking surrogacy in Australia is
approximately 92-8.

In making a baby there
are quite simply three elements sperm, egg and a woman to carry the child who
has a viable uterus. Many Australians
go overseas for egg donation, even without any reference to surrogacy. Many
when undertaking surrogacy also require the assistance of an egg donor.

Under matching
Commonwealth, State and ACT law[2], commonly called The Human Cloning Act there is a penalty
of up to 15 years imprisonment to in essence pay a donor anything other than
reasonable out of pocket expenses.

Those who go overseas
from New South Wales or Queensland don’t run the gauntlet of the Commonwealth
legislation in this respect because it only applies within the Commonwealth and
presumably, territorial seas.The Commonwealth
legislation on point does not apply overseas. There is no long arm law.
Queensland and New South Wales, however, have such a long arm law.

Therefore, while intended
parents worry about going overseas for surrogacy, they may inadvertently be
committing a much more serious offence to do with egg donation.

Because there isn’t a
specific extra-territorial law concerning egg donation, it is possible to go
overseas for egg donation and not commit an offence in Queensland or New South
Wales if it is handled carefully. Indeed, one of the features of the Surrogacy Act
in Queensland and New South Wales is that medical treatment does not have to
occur in Queensland and New South Wales respectively. In theory at least it can
occur anywhere else in the world. There can be some practical difficulties with
that (such as whether the doctor overseas would be recognised in Australia as an
expert) as well as other obvious issues so as to avoid trafficking – but it is
possible (as I have done) to obtain parentage orders in each of Queensland and
New South Wales where there is a foreign egg donor and IVF treatment occurs
offshore.

It is not an offence to
go overseas for commercial surrogacy in Victoria, Tasmania and the Northern
Territory. It is clearly an offence to do so in the ACT for anyone ordinarily
resident there and it may be an offence for someone resident in Western
Australia or South Australia.

Spot
the Differences Going Overseas

The offences in
Queensland and New South Wales about undertaking commercial surrogacy overseas
are different, and the differences are substantial. In Queensland, one offence
is for a person ordinarily resident in Queensland to enter into or offer to enter
into the commercial surrogacy arrangement. New South Wales has the same
offence in effect, for someone who is ordinarily resident domiciled in New
South Wales.

1.Therefore the first point of difference is
that the New South Wales offence purports to extend to someone who is domiciled
in New South Wales even if they don’t live in New South Wales. Someone who
might be born in New South Wales and therefore has a domicile of origin in New
South Wales would at first blush be caught up in the offence. Of course, if
there is a conflict between domicile of origin and domicile of choice, then
domicile of choice trumps domicile of origin.

The
problem comes when you have someone who was born in New South Wales but now
does not have a domicile of choice i.e. they live a life of a nomad.

You
may think that this kind of case may never happen but I will give you two
illustrations where it is possible to occur:

·The clients who wanted to undertake
surrogacy where the husband was a locum doctor moving from state to state
within Australia. He would spend a few months at Hospital A in New South Wales
then move to Hospital B in Western Australia then to Hospital C in the Northern
Territory etc. He clearly would not be ordinarily resident in New South Wales
and nor would he be domiciled in New South Wales except as to domicile of
origin which means that he is potentially at risk of committing an offence. He
may also find it difficult to access domestic surrogacy, due to residential
requirements.

·The family law client some years ago who
figured out that he ought not to be resident of any country, so that he could
avoid paying income tax. He had been spectacularly successful. As part of his
planning he moved residence (and country) sooner than every three months. Of
course not a good lifestyle to have when you have a child but he had a very
good lifestyle and if he were born in New South Wales then he would have a
domicile of origin in New South Wales potentially putting him at risk if he
wished to undertake surrogacy overseas.

2.The second difference is that there is a
separate offence in Queensland under Section 57 of the Surrogacy Act 2010 (Qld) of paying consideration under a commercial
surrogacy arrangement. This is particularly significant because it means the
offence has not occurred on the signing but each offence has occurred
repeatedly during the course of the surrogacy arrangement. Typically with an
overseas commercial surrogacy arrangement there will be a series of payments,
the first payment occurring on signing and the last signing occurring when the
baby is handed over. Each of these would constitute a separate offence. This
means that residents of Queensland have to stay a lot longer outside Queensland
to avoid committing an offence, as opposed to residents of NSW.

3.The third difference – time limits. In New
South Wales there is no time limit for prosecution. Under Section 58 of the Surrogacy Act 2010 (NSW) prosecutors may
decide to prosecute on a summary basis. It is clear that the offence is offensive
entering into is an indictable offence. Offences under the Surrogacy Act are not listed in Schedule 1 of the Criminal Procedure Act 1986 (NSW).
Section 5(1) of the Criminal Procedure
Act 1986 provides:

“An offence must be dealt with on
indictment unless it is an offence that under this or any other act is
permitted or required to be dealt with summarily”.

Because offences under
the Surrogacy Act are not summary
offences (even if they are dealt with on a summary basis) the 6 month time
limit that applies to summary offences under section 179 of the Criminal Procedure Act 1986 (NSW) does
not apply to offences under the Surrogacy
Act. There is no time limit.

By contrast, an offence
under the Surrogacy Act 2010 (Qld) is
a simple offence. Therefore there is a time limit of 1 year before commencement
of proceedings s52 Justice Act (Qld).
For those going overseas, the limitation period is in effect longer.A typical surrogacy arrangement takes between
18 months and 4 years. The time limit for the signing of the commercial
surrogacy agreement will have well and truly passed by the time that the child
returns to Australia, but the time limit for each of the offences for making
payment is unlikely to have passed until at least a year after the child
returns to Australia.

2.Domestic Surrogacy

Prevention is better than
cure. It is essential to plan everything with a surrogacy matter down to the nth
degree.Most importantly, it is
essential that the surrogacy arrangement is respectful of all parties, namely:

·The
intended parents;

·The
surrogate and her partner;

·Any
known donor and her partner;

·But
above all the child.

The practice of surrogacy
is not the practice of baby farming but will result, hopefully in the birth of
a child. We as lawyers can choose whether we wish to create an arrangement that
endures for the benefit of the child or whether we wish on our conscience to
have an arrangement that is a disaster zone and therefore creates a disastrous
life for the child for potentially the next 40 years.

As a family lawyer, I
often ask clients when they come into talk about the children, about what my
clients consider to be long term issues concerning the children. Sometimes the
focus is on next month or even next year. When dealing with very young
children, some clients are prescient enough to talk about the conclusion of
primary school or even the completion of high school and the child turning 18.
Of course, all those clients have it wrong, because the joy and burden of
parenting continues well after a child turns 18 and will, subject to the death
of the child before the parent or the loss of the parent’s marbles due to dementia
or Alzheimer’s or similar, continue until the death of the parent.

I say to my clients that
they have to assume that the surrogacy arrangement is merely the beginning of
the process, not the end and that their planning must be an assumption that
they will have an ongoing relationship of some kind with the surrogate for,
say, the next 40 years.

It is much better as
family lawyers that we hold the job as planners or architects and map out the
arrangement. Sometimes we have clients who know exactly where they want to go
and want to get there the fastest and it might be said that our job is of
pilot. Too often, even with failed surrogacy arrangements, but particularly
with family law, our job is that of janitors who are called upon to clean up
the mess.

3.Checklist for Domestic Surrogacy

The checklist is a very
useful tool to ensure that there has been compliance with the statute, but it
is only part of the story. It is essential that in handling a surrogacy matter
you do so in a holistic manner, in combination with not only your clients but
the other professionals involved such as:

·The relevant counsellors;

·The relevant doctors (which may be a
fertility doctor and an obstetrician and some other specialist, such as a
haematologist or psychiatrist);

·Your opposite number

Table 3

Checklist of Legislative
Requirements in Queensland

No.

Legislative Requirement

Section No.

1.

The
application for a parentage order ordinarily ought to be made not less than
28 days and not more than 6 months after the child’s birth.

21(1)(a)

2.

On
the date of filing the application, the child must have lived with the
Applicants for at least 28 consecutive days.

22(2)(b)(i)

3.

At
the time of filing the child was residing with the applicants.

22(2)(b)(ii)

4.

At
the time of hearing the child is residing with the applicants.

22(2)(b)(iii)

5.

The
applicants have made the application jointly, being a couple application.

22(2)(c),

21(3),(4)
Also note Sec 9(2)&(21) CF Acts
Interpretation Act 1954, Sec 32DA(6) Schedule 1 “Spouse” As to the issue of who is a spouse or couple I will refer
below to the unreported case of P&P (2012)

6.

There
is evidence of a medical or social need for the surrogacy arrangement.

22(2)(d),
14

7.

The
surrogacy arrangement was made after the parties obtained independent legal
advice about the surrogacy arrangement and its implications.

22(2)(e)(i)

8.

Each
of the parties obtained counselling from an appropriately qualified
counsellor about the surrogacy arrangement and its social and psychological
implications.

22(2)(e)(ii),
19

9.

The
surrogacy arrangement was made with the consent of the birth mother and the
applicants.

22(2)(e)(iii)

10.

The
surrogacy arrangement was made before the child was conceived.

22(2)(e)(iv)

11.

The
surrogacy arrangement is in writing and signed by the birth mother and the applicants.

22(2)(e)(v)

12.

The
surrogacy arrangement is not a commercial surrogacy arrangement.

22(2)(e)(vi),
10, 11

13.

The
birth mother and the birth mother’s spouse were at least 25 years when the surrogacy
arrangement was made.

22(2)(f)

14.

The
joint applicants were when the surrogacy arrangement was made at least 25
years.

22(2)(g)(i)

15.

At
the time of hearing of the application the applicants are resident in
Queensland.

22(2)(g)(ii)

16

All
parties consent to the making of the parentage order at the time of the
hearing.

22(2)(h)

17.

A
Surrogacy Guidance Report under section 32 supports the making of the
proposed order

22(2)(i),
19

18.

The
proposed order will be for the wellbeing, and in the best interests, of the
child, both through childhood and for the rest of her life.

6(1),
22(2)(a)

19.

There
has been compliance with the documents to be produced to the court.

25

Table
4

Compliance with documents required
by s.25 Surrogacy Act 2010 (Qld)

Subsection

Document

25(1)(a)

A
copy of the child’s birth certificate

25(1)(b)

A
copy of the surrogacy arrangement

25(1)(c)

An
affidavit under s.26 of each of the applicants

25(1)(d)

An
affidavit under s.27 by the birth mother, Aroha Rei Shuttleworth

25(1)(e)

An
affidavit under s.28 by the birth mother’s spouse

25(1)(f)

An
affidavit under s.29 by another birth parent

25(1)(g)

An
affidavit under s.30 by the lawyer who gave legal advice to the applicants
before the surrogacy arrangement was made

25(1)(g)

An
affidavit under section 30 sworn by the lawyer who gave legal advice to the
birth mother

s.25(1)(h)

An
affidavit under section 31 sworn by the appropriately qualified counsellor
who gave counselling to the birth mother and the joint applicants before the
surrogacy arrangement was made

s.25(1)(i)

An
affidavit sworn by the independent appropriately qualified counsellor who,
for the purpose of the application, interviewed the parties; and verified the
surrogacy guidance report under section 32 prepared by the counsellor

s.25(1)(j)

For
each applicant who is a woman, an affidavit from an appropriately qualified
medical practitioner verifying a report prepared by the medical practitioner
as to why the applicant is an eligible woman.

4.Some Tricky Areas

I just want to touch on six
tricky areas:

1.Single or couple

2.Strict compliance;

3.Medical or social need;

4.Conception;

5.Payment to the Surrogate

6.Appearance at Court

4.1Single or couple

Neither Queensland nor
New South Wales discriminate about who can undertake surrogacy, whether based
on relationship status or sexuality. You can be married, heterosexual, de facto
couple, same sex couple or single intended parents. Similarly, the surrogate
can be married, heterosexual, heterosexual de facto couple, same sex couple or
single.

Section 21 requires
ordinarily though that if there is a couple then the couple must undertake the
surrogacy arrangement together. This shows the difference between married and
de facto couples. A de facto relationship ends when the parties separate. A
marriage does not end until the parties divorce.

In P & P (2012) the intended parents were married. They and the
wife’s parents (the wife’s mother to be the surrogate) had undertaken a total
of 8 hours counselling. Independent legal advice had been given to each side.
The surrogacy arrangement had been drafted. Just before it was to be signed,
the intended father said that he was not undertaking a surrogacy arrangement,
he did not wish to be a father, he did not wish to be in the marriage anymore
and he was going home to mother – and did.

The intended mother
therefore had a problem. Her mother was aged 50 the upper limit for treatment.
If she and her husband were still considered a “couple” then would she be able to proceed with the surrogacy
arrangement alone?

Under the regime of both
the Surrogacy Act inQueensland and New South Wales there is
not a pre-approval process by a state regulator (as there is in Victoria or
Western Australia). Treatment could be legally provided to the intended mother
to enable the surrogacy to proceed, provided that there was a surrogacy
arrangement in place – but there was no guarantee that an order could be made.
The intended mother lived at home with her parents. They had the same surnames.
The child would therefore have the right surname but the mother and her brother
would be shown as siblings of the child rather than mother and uncle
respectively.

The mother could
therefore decide to commence treatment or in the alternative wait 16 months for
the divorce to take effect in which case there was a real likelihood that her
mother would not get pregnant.

The mother chose
treatment over getting divorced. Her mother became pregnant. The child was
conceived and born.

Judge Dick QCfound that “couple” did not include a married couple where the relationship had
broken down irretrievably – and therefore the intended mother could proceed
with treatment. In the alternative her Honour stated that it was a matter that
could be dispensed with under section 23 and that both conditions namely that
there are exceptional circumstances (because there was a real risk the
grandmother would not become pregnant) and that the dispensation was for the
wellbeing and the best interests of the child.

4.2Strict Compliance

Section 25 states:

“The following
documents must be produced to the court”

There isn’t any basis on
the court to dispense with the various documents. P & P is an illustration of what can go wrong when a document
is unable to be produced to the court. In that case, the original counsellor
refused to swear an affidavit verifying her report. She had prepared a very
short one page report saying that counselling had finished. Despite my and my
colleague’s best efforts we could not get her to swear the affidavit. She
disapproved of the surrogacy arrangement and she particularly disapproved that
my clients and their daughter had gone to another fertility clinic. When we
attended before Judge Dick there was an affidavit by me setting out the
extraordinary difficulties we had with the counsellor. Her Honour said simply:

“Parliament said
must, Mr Page. Must means must”

The matter was then
adjourned for a period of 2 weeks to enable the counsellor to swear an
affidavit that I forwarded to her, along with a subpoena. It was made plain to
her that if she failed to swear the affidavit she would be called upon to give
evidence and if that step were required, her Honour would report the counsellor
to her professional association.

The counsellor then swore
an affidavit – but in doing so said that the counselling was incomplete!

When the matter returned
before her Honour, her Honour stated that the requirement for counselling to be
undertaken was that it be undertaken but that it did not need to be completed.
Happily the parentage order was made.

As a result of my
experience in that case, I now insist that once counselling has been undertaken
all legal advice provided by the relevant lawyers that the affidavits of the
counsellor and the lawyers are then sworn (and not waiting until the
application is made). Therefore even if a child isn’t conceived at least the
affidavits are obtained and the risk of failure through non co-operation, death
or disability is avoided.

4.3Medical or Social Need

If you have a single male
client or a gay couple you only have to establish medical needs. With the
exception of some transgender men in Australia, men can’t carry babies. Section
14 sets out the requirements for medical need:

(1)“For an application for a parentage
order—

(a)if there is 1 intended parent
under the surrogacy arrangement—there is a medical or social need for the
surrogacy arrangement if the intended parent is a man or an eligible woman; or

(b)if there are 2 intended parents
under the surrogacy arrangement—there is a medical or social need for the
surrogacy arrangement if the intended parents are—

(i) a man
and an eligible woman; or

(ii) 2
men; or

(iii) 2
eligible women.

(2)An eligible woman is a woman who—

(a)is unable to conceive; or

(b)if able to conceive—

(i) is likely to be unable, on
medical grounds, either to carry a pregnancy or to give birth; or

(ii)either—

(A)is unlikely to survive a
pregnancy or birth; or

(B)is likely to have her health
significantly affected by a pregnancy or birth; or

(iii) is
likely to conceive—

(A)a child affected by a genetic
condition or disorder, the cause of which is attributable to the woman; or

(B)a child who is unlikely to survive a pregnancy
or birth; or

(C)a child whose health is likely to
be significantly affected by a pregnancy or birth. “

The best description of
the word “likely” is contained in a
full court of the Federal Court proceedings in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’
Union (1979) 42FLR 331 in which there is a long discussion of the word “likely” for which the shorthand version
is that it means real possibility.In other words it doesn’t need to be any more
probable than not but there is a real possibility of the thing happening.

4.4Conception

As seen in the checklist
under Section 22(2)(e)(iv) the surrogacy arrangement must be made “before the child was conceived”.

It is common with IVF
that the embryos might be created days, months or years before the surrogacy
arrangement was signed. In LWV & Ano
v LMH [2012] QC hC 206, Judge Clare
SC in a world first precedent said that conception was the act of pregnancy,
not the act of fertilisation. Therefore assuming that the parties signed the
surrogacy arrangement and then subsequently the surrogate becomes pregnant,
there is compliance with the legislation.

It is not a commercial
surrogacy arrangement if the only payments that are made are the birth mother’s
surrogacy costs. These are set out in Section 11.

“(1) A birth mother's surrogacy costs are the
birth mother's reasonable costs associated with any of the following matters—

(a) becoming or trying to become pregnant;

(b)a pregnancy or a birth;

(c)the birth mother and the
birth mother's spouse (if any) being a party to a surrogacy arrangement or
proceedings in relation to a parentage order.

(2) Without limiting subsection (1), the
following amounts are a birth mother's surrogacy costs—

(a) a reasonable medical
cost for the birth mother associated with any of the matters mentioned in
subsection (1);

Example of a reasonable medical
cost for paragraph

(a)— a cost incurred before conception if the birth
mother consults a medical practitioner to
find out if she is capable of carrying a pregnancy before undergoing a
fertilisation procedure

(b) a reasonable cost,
including a reasonable medical cost, for a child born as a result of the
surrogacy arrangement;

(c)a premium payable for
health, disability or life insurance that would not have been obtained by the
birth mother if the surrogacy arrangement had not been entered into;

(d) a reasonable cost of
counselling associated with any of the matters mentioned in subsection (1),
including—

(i) the cost of counselling
obtained by the birth mother or the birth mother's spouse (if any) before or
after entering into the surrogacy arrangement; or

(ii) the cost relating to
the preparation of a surrogacy guidance report under section 32;

(e) a reasonable legal cost
for the birth mother and the birth mother's spouse (if any) relating to the
surrogacy arrangement and the transfer of parentage;

(f) the value of the birth
mother's actual lost earnings because of leave taken—

(i) for a period of not
more than 2 months during which a birth happened or was expected to happen; or

(ii) for any other period
during the pregnancy when the birth mother was unable to work on medical
grounds;

(g) another reasonable cost
associated with the surrogacy arrangement or the making of the order
transferring parentage.

Examples of other reasonable costs for paragraph
(g)—

travel and accommodation costs for a birth mother
who lives interstate and travels to Queensland to undertake a fertility
treatment, to consult with an obstetrician or to give birth

travel and accommodation costs associated with a
birth mother's attendance at a court hearing about an application for a
parentage order if the birth mother does not live near the court”

The key to section 11 is
that subsection 1 is the one that sets out the criteria and the key there is
what are reasonable. Subsection 2, although
a shopping list, is merely that a list of examples and not of the matters
contained under (1) necessarily.

An
example of an unusual birth mother’s surrogacy costs

I acted for a
woman who wished to be a surrogate. She ran her own business which was as a dog
walker. This entailed, not walking behind the dogs, but being pulled by them
across the hills of Brisbane on roller skates. My client took the view that
during the course of the surrogacy she wanted to employ a locum. The solicitor,
for the intended parents, formed the view that this was not within Section
11(2)(f) or the related New South Wales provision (as it was an interstate
matter).

It might be noted
at this point that if you have interstate matters they must comply with the
legislation as to the expenses of the surrogate in both places or offences
might be committed about commercial surrogacy in one or both places.

In my view I was
not going to have a pregnant woman being hauled by a bunch of dogs on
roller-skates across the hills and dales of Brisbane and no-one in their right
mind would suggest that that happen. It was reasonable in my view that she
employ a locum, or she would lose her business, therefore it was a reasonable
cost associated with the pregnancy and therefore within section 11(1)(b) and
the equivalent New South Wales provision.

4.6Appearance at Court

Judges are greatly helped
if both sides are legally represented. Judges have expressed concern to me
about the possible power imbalance between the surrogate and her partner on the
one hand and the intended parents on the other. They want to make sure that
no-one is being exploited, whether the intended parents, the surrogate and her
partner or the child.

In Queensland there is an
appearance which is before a Children’s Court Judge at District Court level in
a closed court. Originally I would not take the baby to court. I now make sure
my clients take the baby to court. The judges are delighted to make orders with
one judge describing the appearance, on a Monday morning “What a wonderful way to start the week”.To undertake a happy surrogacy journey is a
world away from the pain of the day to day work of the District and Childrens
Courts.

Usually about 2 business
days before court I provide the court with written submissions.On the morning of court I obtain a 1 page
affidavit from the intended parents saying that they live in Queensland and
continue to have the care of the child. Usually court goes like clockwork and
once we get on we are out of there quickly. It is common for judges not to have
undertaken surrogacy matters before and sometimes they need to be educated
about the process through written and/or oral submissions.

5.NEW SOUTH WALES

Table 5

New
South Wales Checklist

Number

Legislative requirement

Section

1.

The application for a
parentage order ordinarily ought to be made not less than 30 days and not
more than 6 months after the child’s birth.

16(1)

2.

At the time of hearing the
application, the child is living with the plaintiffs.

33

3.

The plaintiffs were a
couple at the time of entering the surrogacy arrangement.

25(1)(a)

4.

The application has been
made jointly, by the plaintiffs as they are a couple.

14(2)

5.

There is evidence of a
medical or social need for the surrogacy arrangement.

30

6.

The surrogacy arrangement
was made after the parties obtained independent legal advice about the
surrogacy arrangement and its implications.

36

7.

Each of the parties
obtained counselling from an appropriately qualified counsellor about the
surrogacy arrangement and its social and psychological implications

35(1)

8.

The surrogacy arrangement is a preconception
surrogacy arrangement.

5(1)(a)
& Sec 24

9.

The surrogacy arrangement must
be in the form of an agreement in writing and signed by the birth mother, the
birth mother’s partner and the plaintiffs.

34

10.

The surrogacy arrangement
is altruistic.

23

11.

The birth mother and the
birth mother’s spouse were at least 25 years when the surrogacy arrangement
was made

27(1)

12.

The joint plaintiffs were
when the surrogacy arrangement was made at least 18 years.

28
& 29

13.

At the time of hearing of
the application the Plaintiffs are resident in New South Wales.

32

14.

All affected parties
consent to the making of the parentage order at the time of the hearing.

31

15.

An independent counsellor’s
report under section 17 supports the making of the proposed order.

17(1)

16.

The birth mother and her
partner have had relinquishment counselling

35(2)

17.

The proposed order will be
for the wellbeing, and in the best interests, of the child.

22

18.

The child is under the age
of 18 years of age at the time the application is made.Given his age and maturity it is not
appropriate to take his wishes into account.

26

19.

Information has been
provided for inclusion in the Central Register.

37

20.

Child’s birth has been
registered.

38

5.1Single or couple

The Surrogacy Act 2010 (NSW) doesn’t discriminate. The intended parents
can be a married couple, hetrosexual defacto couple, same sex couple or single.
There isn’t the equivalent of section 21 of the Queensland Act (as to who is a
couple) in the New South Wales Act.

5.2
Strict Compliance

There isn’t the
requirement under Section 25 of the Queensland Act for listed documents to be
filed. In my view the following documents should be filed:

Table 6

New
South Wales Documents

Number

Document

1.

Summons;

2.

Draft order;

3.

Affidavit of one intended
parent;

4.

Affidavit of other intended
parent;

5.

Single or joint affidavit
of the surrogate and their partner;

6.

Affidavit of plaintiff’s solicitor;

7.

Affidavit of defendant’s solicitor;

8.

Initial counsellor’s report;

9.

Independent counsellor’s report;

10.

Relinquishment counselling report;

11.

Affidavit as to medical need;

12.

Affidavit of identity
including birth certificate

5.3Medical or Social Need

Section 30 of the Surrogacy Act 2010 NSW is the equivalent
of section 14 of the Queensland Act as to medical need and eligible woman:

The New South Wales Act
requires that there be a pre-conception
surrogacy arrangement but then doesn’t define what is conception –Section 5(1).
However Section 5(4) refers to a variation to a pre-conception surrogacy
arrangement:

“that is made after a woman who
agrees to become pregnant or try to become pregnant under the arrangement
becomes pregnant is considered to be a part of the pre-conception surrogacy
arrangement”.

There doesn’t seem to be
the same problem as existed in Queensland before LWV v LMH.

In any event I have had a
number of orders made in the Supreme Court where a frozen embryo created before
the surrogacy arrangement was used.

I have cited a number of
times in submissions to the court the decision in LWV v LMH, without any difficulty being struck.

5.5Payment to Surrogate

Section 7 of the Surrogacy Act sets out the birth mother’s surrogacy costs. The same
approach in essence is taken as in Queensland:

“(1) For
the purposes of this Act, a "birth mother’s surrogacy costs" are
the birth mother’s reasonable costs associated with
any of the following matters:

(c) the
reasonable costs associated with the birth mother and the birth mother’s partner (if any) being a party to
proceedings in relation to such a parentage order, including reasonable travel and
accommodation costs.

(5)
A cost is reasonable only if:

(a) the
cost is actually incurred, and

(b) the
amount of the cost can be verified by receipts or other documentation.

(6)
In this section: "medical costs" does not include any costs that are
recoverable under Medicare or any health insurance or other scheme”.

I say, in essence, as I
mentioned before if you have an interstate matter you have to make sure that
there will be compliance with the legislation in both states to ensure that the
surrogacy arrangement is an altruistic one and that the parties (and therefore
potentially everyone else associated) have not committed an offence in either
jurisdiction in entering into a commercial surrogacy arrangement.

In my first
Queensland/New South Wales matter I had to have two clerks compare the relevant
provisions of the legislation namely section 7 of the New South Wales Act and section
11 of the Queensland Act to discover that in substance they were essentially
the same.

Nevertheless you will
have to go through this exercise yourself with each interstate matter.

As it is a requirement of
the NSW Act that verification is needed, the surrogacy arrangement should
contain specific references to this.

5.6Appearance at Court

Typically an appearance
is not required. The papers can be lodged with the Supreme Court and the matter
dealt with in chambers in the adoption list. This process usually takes about 3
weeks, although if the court is delayed can take up to 9 weeks.

It is possible to request
an appearance before the court. I did one of these last year for 2 reasons:

(a)It got on quicker; and

(b)The benefits of the appearance.

The downside of course
was for the client, that it cost more.

The upside is that going
to court to have a parentage order made is an uplifting experience for all
concerned but particularly the intended parents when the imprimatur of the State
has been given to the intended parents that they are recognised for all
purposes as the parents.

If one remembers that the
purpose of surrogacy is to have a baby and to be recognised at law as the
parent, to go before a judge and be told by the judge in approving terms that
you are the parent of the child is an extraordinarily impounding and enriching
experience.

I would encourage you or
any clients who need to obtain an order in the Supreme Court to have an
appearance. In one matter in which I have appeared, we were taken into the
judge’s chambers, cameras were allowed and the various parties were allowed to
wear his Honour’s wig. It was relaxed, joyful, empowering, uplifting and above
all enriching to the parties who had undertaken surrogacy.

5.7Who does the Counselling?

Unhelpfully the Surrogacy
Act 2010 (NSW) is unclear as to who undertakes the counselling. You need to
check carefully the surrogacy regulation 2011 in particular regulations 6 and
7. The counsellor who undertakes the initial counselling is different from the
person who undertakes the independent assessment report post birth. The
counsellor who undertakes the relinquishing counselling of the surrogate and
her partner may, in my view, be the same as the pre-signing counsellor and it is
preferable if they are the same. Reports from counsellors are from surrogates
and their partners are that if they have to endure three sets of counsellors on
the way through it tends to make their eyes and heads spin much as, I suppose,
when one becomes a patient in a casualty ward at hospital and you repeat the
same story over and over again to different health professionals. To have only
two counsellors on the way through makes it a considerably easier process for
the surrogate and her partner.

6.Who’s a Parent?

Generally, the Status of Children Act in each of New
South Wales and Queensland (and elsewhere) is quite clear. The woman who gave
birth is the mother and her partner is either the father or the other parent. A
parentage order is therefore necessary to transfer parentage. The problem with
that is that if you have a single surrogate, it is possible that the only
parent is not the surrogate, but the intended parents. For contrasting
positions on this:

·Mason
and Mason [2009] FamCA 484 – where Ryan J took the preliminary
view that who is and who is not a parent is determined by the status of
children legislation, not the Family Law Act, as the status of children
legislation and the Family Law Act together form a scheme:

·Groth
and Banks [2013] FamCA 430 – where Cronin J held that the
Family Law Act overrode the Victorian Status of Children Act and in a donor
situation to a single woman the known sperm donor was the father. His Honour
held that the category of who was parent under the Family Law Act as determined
on a case by case basis, and that base was determined by both biology and
intention.

I for one in matters
seeing parentage orders under the Surrogacy
Act, whether Queensland, New South Wales or elsewhere certainly rely on the
traditional view of who is a parent, by reliance on Status of Children legislation.

This matter was
highlighted particular in S v B; O v D
[2014] NSWC 1533.The Summons in the
Supreme Court originally sought a transfer of parentage only from the surrogate
to the intended mother. The intended father was already named on the birth
certificate as the father. Of course, unless a Groth and Banks argument were to succeed, the intended father would
not be the father for the purposes of a parentage order application until after
an order was made. Before an order is made the only person who could be the
father would be the male partner of the surrogate. There were two parentage
order applications – one of which the birth was registered in New South Wales
and the other in Victoria.

White J held:

“In
neither case was the birth registered in accordance with the requirements of
the Births, Deaths and Marriages Registration Act of NSW or Victoria. The man
who was irrefutably resumed to be the father of the child did not join in the
application. The man named as the father of the child on the birth registration
statement was not the man recognised by law at the time of the registration to
be the father of the child. It only becomes the father of the child on the
making of a parentage order (or an adoption order if that be necessary)”.

His
Honour went onto say:

“The
difficulty in both cases was that the husband of the birth/surrogate mother was
not prepared to complete a birth registration statement that named him as the
father of the child, notwithstanding that until a parentage order were made
under the Surrogacy Act (or an adoption order made if that were required), he
was irributably presumed to be the child’s father.”

The solicitor for the
plaintiffs advised that she provided legal advice to the parties that the birth
mother (i.e. the surrogate mother) should be recorded on the birth certificate
as the child’s mother and that the intended father should be named on the birth
certificate as the child’s father. She advised that in both cases the husband
of the birth mother did not wish to be named on the birth certificate as the
child’s father. She stated:-

“As
the husband of the surrogate mother did not wish to be recorded on the birth
certificate, as was the intention by the plaintiffs to apply for a parentage
order with the consent of the defendants and as there was no penalty for
registering the second plaintiff as father, or no specific exclusion not to be
registered, the advice given by me was for the second plaintiff to be recorded
on the birth certificate as father. (In each case the second plaintiff was the
intended father)”.

“The Solicitors for the Plaintiffs submitted that it was
in the best interests of each child from the outset that the intended fathers
be registered as the children’s foster us fathers. Have their name on the birth
certificate as father, assisted in the process of having the child’s name on
the Medicare Card of the intending father soon after the birth of the child.
The children live with their intended parents very soon after birth. If there
have been any post-birth complications for which the father’s consent to
medical treatment might have been required, having the intended father’s name
on the birth certificate could have avoided complications”.

His
Honour went onto say:

“The
pre-condition in s38 to the making of a parentage order is not met. Despite
that pre-condition not having been met, the parentage order can be made if I’m
satisfied that exceptional circumstances justify the making of the Order.
(Surrogacy Act s18). The guiding principle in administering the act is that the
best interests of the child be paramount ………The phrase “exceptional circumstances” is used in a wide variety of
legislation. The phrase is to be construed in the context in which it appears
in having regard to the purposes of the legislation. In its ordinary sense
circumstances can be exceptional if they are out of the ordinary. Sometimes the
expression “exceptional” is used as a synonym for “special” …….. I am satisfied
in the present case that there are exceptional circumstances that justify
ignoring the non-satisfaction of the pre-condition in s38. I think it must be
unusual out of the ordinary for parties to be advised by a solicitor that they
need not comply with the requirements of the law. That is what the solicitor’s
advice amounted to in this case. No doubt the advice was well-meaning, but it
was wrong.

The solicitor said that it was intended that the
Plaintiffs (the intended parents) would apply for a parentage order with the
Defendants’ (the surrogate mother and her husband) consent. But the application
initially made was only for the transfer of the mother’s parentage. If that had
been the only order the child would be without a father. The incorrect details
in the birth certificate would not withstand scrutiny if the child’s parentage
were an issue. I infer that the reason that the intended fathers in the present
case did not initially seek a parentage order for the transfer of the parentage
of the children for the partners of the surrogate/birth mothers to them was that
they considered that having been recorded on the birth certificate as the
children’s fathers, they would have that status and nothing more would need to
be done. Whilst the registration of the children’s fathers gave rise to a
presumption that they had that status, the presumption could readily be
rebutted with potentially irreversible consequences, for example, if one of the
intended fathers died and the question was whether his estate should pass to
his child on intestacy.”

There have been subsequent
decisions involving the same solicitor where the court has allowed that issue
to be dispensed with.

7.Transformative Effect

The making of a parentage
order is of transformative effect in the life of a child. In BLH and HM v SJW and MW [2010] QDC 439,
Irwin DCJ summarised the legislation in Queensland on a parentage order
application and the benefits and risks to the child from the order being made
or not being made.

Australia is a signatory to the International Convention on the Rights of
the Child [1991] ATS 4.Any
construction of the statute should be consistent within Australia’s
international obligations: Teoh’s case
[1995] HCA 20 (1995) 183 CLR 273 at [26] per Mason CJ and Deane J.

Article 8 of the Convention provides:

(1)“States Parties undertake to respect the right of the child to preserve
his or her identity, including nationality, name and family relations as
recognised by law without
unlawful interferences.

(2)Where a child is illegally deprived of some or all of the elements
of his or her identity states parties shall provide appropriate assistance and
protection, with a view to speedily
re-establishing his or her identity.”

There
have been a number of English cases that have considered Article 8 of the
Convention.They have done this in
considering whether or not to make surrogacy parental orders under section 54
of the Human Fertilisation Embryology Act
2008(UK).In A v P(Surrogacy: parental
order: death of applicant)[2011] EWHC1738 (Fam), [2012] 2FLR 145, Theis J
stated after having referred to Article 8 that:

“The
concept of identity includes the legal recognition of relationships between
children and parents.”

“Section
54 goes to the most fundamental aspects of status and, transcending even
status, to the very identity of the
child as a human being: who he is and who his parents are.It is central to his being, whether as an
individual or as a member of his family.As Ms Isaacs correctly
puts it, this case is fundamentally about Xs identity and his relationship with
the commissioning parent.Fundamental as these matters must be to
commissioning parents they are, if anything, even more fundamental to the
child.A parental order has, to adopt
Theis J’s powerful expression, a transformative effect, not just in its effect
on the child’s legal relationships with the surrogate and commissioning parents
but also, to adopt the guardian’s words in the present case, in relation to a
practical and psychological realities of X’s identity.A parental order, like an adoption order, has
an effect extending far beyond the merely legal.It has the most profound personal, emotional,
psychological, social and, and, maybe in some cases, cultural and religious,
consequences.It creates what Thorpe LJ in
Re J (adoption: Non-Patrial) [1998] INLR 424, 429, referred to as ‘the psychological relationship of parent and child
with all its far-reaching manifestations and consequences.’Moreover these consequences are lifelong and,
for all practical purposes, irreversible…”

8.Cherishing the Surrogate

According to IVF doctors
there is about a 1 in 10,000 chance that the surrogate will die during the
pregnancy or child birth. One surrogate has died, with twins, in Canberra and
another surrogate in late 2015 died in Idaho, also pregnant with twins.

There is currently about
a 6% chance (or in rough terms 1 in 16) that if one embryo is implanted twins
will be conceived. In the US, by comparison the rate is much higher, about 1 in
11 or 12% or just under 1 in 8.If the
surrogate carries twins, there is a high chance that the pregnancy will be complicated,
as opposed to a single embryo transfer and a 60 plus % chance that the twins
will be born prematurely and will therefore be behind their peers all their
lives. There is a high chance of complications with pregnancy in childbirth.

If you can say to your
clients in anyway to have a single embryo transfer, which is in accordance with
the current standards of IVF doctors, do so.

It is preferable in my
view that the intended parents pay for private cover for the surrogate, and if
they are able to obtain private health insurance. Whilst coverage is not
guaranteed, it is preferable if not essential that the surrogate have adequate
life insurance and income protection insurance – to be paid for by the intended
parents. Because of coverage issues, my view is that the intended parents and
surrogate should approach a reputable life insurance agent who has experience
in surrogacy matters so that there is the greatest chance of adequate and
appropriate insurance being obtained, without exclusions.

It is unfortunate that
one provision of the Surrogacy Act 2010
(Qld) that is not in the Surrogacy Act
2010 (NSW) namely section 16 which provides:-

“(1)This section applies to a surrogacy
arrangement despite anything that the parties to the arrangement may have
agreed, whether or not in writing;

(2)A
birth mother has the same rights to manage her pregnancy and birth as any other
pregnant woman.”

I am insistent that in
every surrogacy matter that I have (whether it be in Queensland, NSW or other
domestic arrangement such as Victoria, South Australia, ACT) that a clause to
that effect is contained in the surrogacy arrangement. I cannot tell you how
empowering it is for the surrogate to see that in writing. That clause says
that quite simply that her life is valued and cherished and that she has
control over her body.

9.Acting
Collaboratively

It is imperative in
undertaking surrogacy that a collaborative approach is taken – both with the
lawyer on the other side and with any health professionals or counsellors
involved. We are not seeking to litigate a matter to death, but involved in the
joyful process of creating a child. We as lawyers have obligations to our
clients and other duties, and we cannot shirk those. To the extent possible
consistent with our duties, the process should be as collaborative and
co-operative as possible, because after all we are involved in the process of
creating a child. It is possible to create war-like conditions for this child
for the next 40 years or to ensure that this child knows where they come from
and has a happy healthy upbringing.

[1]Stephen
Page is a partner of Harrington Family Lawyers Brisbane.He was admitted in 1987 and has been an
accredited family law specialist since 1996.He is one of two international representatives on the Artificial Reproductive
Treatment Committee of the American Bar Association, a fellow of the
International Academy of Matrimonial Lawyers and the first international fellow
of the American Academy of Assisted Reproductive Treatment Attorneys
(AAARTA).He is the author ofthe Australian Surrogacy and Adoption Blog: http://surrogacyandadoption.blogspot.com.au

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.